국제적 조직재편에서의 과세이연

This paper investigates the tax deferral issues arising from international corporate reorganizations, with a focus on the application of tax deferral to corporations and shareholders involved in cross-border mergers, spin-offs, and share-for-share exchanges. The current Korean corporate tax law limits the scope of qualifying reorganizations eligible for tax deferral to domestic corporate restructurings, thereby excluding reorganizations involving foreign corporations from tax deferral treatment. This approach creates both practical limitations on international restructuring and unintended loopholes in cross-border tax administration. The study categorizes international corporate reorganizations into three types: (1) domestic reorganizations of Korean corporations involving foreign shareholders, (2) reorganizations conducted within Korea by foreign parent companies through triangular mergers or share exchanges, and (3) foreign-to-foreign reorganizations affecting Korean shareholders. By comparing the Korean system with those of the United States and Japan, the paper derives legal and policy implications for Korean tax law. In the first case, where a domestic corporation carries out a qualifying reorganization such as a merger or spin-off, Korean tax law currently treats the receipt of new shares by shareholders as taxable—either as deemed dividends or capital gains—unless the transaction qualifies for tax deferral. While the law permits tax deferral for foreign shareholders in qualifying reorganizations, this policy can inadvertently result in permanent tax exemption in cases where Korean-source shares are exchanged for foreign shares over which Korea no longer has taxing rights. For instance, if a foreign shareholder exchanges real estate-rich Korean shares or shares representing a significant (25% or more) interest for new shares in a foreign company, the Korean taxing right may effectively disappear. In such cases, the transaction should not be treated as a tax deferral but as a tax exemption. The study proposes that Korean tax law be revised to deny deferral when shares subject to Korean taxation are exchanged for those outside its tax jurisdiction. The second scenario involves reorganizations initiated in Korea by foreign corporations, such as triangular mergers or share exchanges in which the consideration is the foreign parent’s stock. Under current Korean tax law, deferral is denied in such cases on the basis that the consideration does not involve shares issued by a domestic corporation. However, from a tax policy standpoint, deferral for the target company does not necessarily result in a loss of Korea’s taxing rights. Accordingly, the paper argues that Korea should allow tax deferral in such cases to enhance the flexibility and utility of international reorganizations. Nevertheless, similar to the first case, if foreign shareholders of the Korean target exchange their Korean shares for shares of a foreign parent corporation, and thereby remove Korean taxing rights, deferral should be denied. The third scenario relates to foreign-to-foreign reorganizations, where the target company is a foreign corporation and Korean investors are shareholders. Currently, Korean tax law does not allow deferral in such cases, regardless of how the transaction is treated in the foreign jurisdiction. However, the paper argues that allowing tax deferral for Korean shareholders in foreign reorganizations does not jeopardize Korea’s taxing rights, provided that gain realization is deferred, not exempted. A notable example is the AT&T–WBD spin-off, where Korean shareholders received new WBD shares as a result of the spin-off. Although no immediate income is recognized at the time of the transaction, the initial cost basis in the AT&T shares can be properly allocated between the post-spin AT&T and WBD shares. When these shares are eventually disposed of, Korea can still impose capital gains tax. Therefore, granting tax deferral in such cases aligns with the principle of deferring, not forgiving, tax liability. Regarding the determination of whether a foreign reorganization qualifies for tax deferral under Korean law, the paper explores two contrasting models. The U.S. model applies domestic tax law requirements to foreign reorganizations, allowing deferral only if specific provisions of the Internal Revenue Code are met. The Japanese model, by contrast, recognizes foreign reorganizations as tax-deferred transactions if their legal and economic effects are substantially equivalent to those recognized under Japanese corporate law. Although the paper does not take a definitive stance on which model Korea should adopt, it stresses that either model can be compatible with Korea’s interest in preserving taxing rights, so long as the transactions are properly monitored and compliance is ensured. Additionally, the study notes that when a foreign corporate shareholder of a Korean corporation is itself involved in a foreign-to-foreign reorganization, Korean tax law may treat the Korean shares held by the foreign shareholder as disposed of, thus triggering Korean tax. In such cases, allowing deferral would not affect Korea’s taxing rights, and could be considered a reasonable policy option. In conclusion, the paper finds that the current Korean approach to international corporate reorganizations is overly rigid and does not sufficiently distinguish between situations in which Korea’s taxing rights are preserved versus those in which they are lost. The default denial of tax deferral for reorganizations involving foreign corporations may simplify enforcement but restricts the practical utility of cross-border restructuring and undermines Korea’s international competitiveness. Conversely, the blanket extension of tax deferral to foreign shareholders in domestic reorganizations can lead to leakage of tax revenue and abusive tax planning. A more nuanced and case-specific framework is needed—one that permits tax deferral where Korea’s taxing rights are preserved and restricts it where they are jeopardized. Such an approach would strike a better balance between administrative simplicity, international coordination, and effective tax enforcement. By refining the scope and application of tax deferral provisions in the context of international reorganizations, Korean tax law can enhance both legal certainty and economic efficiency in cross-border transactions.